People v. Nowak — 7 N.Y. Crim. 69

Majority

p. 69

Supreme Court—General Term—Second Department.

May, 1889.

PEOPLE v. NOWAK.

Headnote

Affidavit as Basis of an Arrest.—When Insufficient-

An affidavit taken before a notary public is not a sufficient deposition to justify the issuing of a warrant by a magistrate for an arrest.

The deposition must state the particulars of a specific offense; a general charge of guilt is not sufficient to justify the issuing of a warrent of arrest by the magistrate to whom complaint is made.

An affidavit, not prepared by the magistrate, that on the 20th day of May, 1888, and on divers Sundays since that date, defendant has sold and given away intoxicating liquors, is entirely insufficient, and where no examination of the complainant or of his witnesses is taken, it confers no jurisdiction to issue a warrant for the arrest of the accused.

Appeal by defendant, Anton Nowak, from a judgment of the Court of Sessions of Suffolk County, of December 7, 1888, affirming a judgment of the Court of Special Sessions Hon. Charles Waller presiding, of September 25, 1888, in the town of Islip, upon a conviction of defendant of the sale and giving away liquor on Sunday.

The facts sufficiently appear in the opinion of the General Term.

Wilmot M. Smith, District Attorney, for the people respondent.

The justice of the peace had jurisdiction to issue the warrant of arrest. Affidavit upon which it was founded contained a positive statement of the facts constituting the crime by the complainant under oath. It was therefore sufficient

Andrew Heymom, for defendant, appellant

p. 70

(The points of the appellant are sufficiently covered by the opinion of the General Term.)

There is no evidence returned in this case, and it must therefore be assumed that sufficient evidence was given to support the verdict of the jury, based upon a charge of selling intoxicating liquors on Sunday. The return shows that the warrant was issued on September 15, 1888; it was made returnable on September 21, 1888. The accused then asked for the information, and was shown an affidavit made by one John Seaman, before a notary public of Suffolk county, that “ he had bought liquor of him [defendant] at his saloon on one Sunday, in the month of May, 1888.” The defendant" made a motion to discharge the arrest, because this affidavit was insufficient under sections 145-148, Code Grim. Proc. This motion should have» been granted, as this paper is entirely insufficient to authorize a warrant.

The return shows that there was another paper, of which the defendant was entirely ignorant when the motion to discharge was made. This was an affidavit of one George W. Jeffrey, that defendant, on May 20, 1888, and on divers Sundays since that date, has sold and given away intoxicating liquors. This affidavit was not prepared by the justice, and is in no sense on its face a statement of facts which prove a criminal offense. It was the duty of the justice to take an examination. Crim. Code, § 148. The deposition must tend to establish the commission of the crime,—that is, it must state the particulars of a specific offense,—and it is only when the magistrate is “ satisfied therefrom that the crime complained of has "been committed,” and that there is reasonable ground to believe that the defendant committed it, that he must issue the warrant. The affidavit of Seaman is a nullity as a deposition of a witness preliminary to a warrant. The affidavit of Jeffrey does not pretend to set forth a particular crime. A general charge of guilt is made, but no facts showing a criminal offense are stated. It was

p. 71

a sufficient basis for an examination of the complainant and of his witnesses; none was offered or taken. The justice was, therefore, without jurisdiction, and the judgment of the justice, and of the county court affirming the same, should be reversed.

Pratt, J-3 concurs.